Article 2/2025

What are some of the important principles governing a charge of intoxication (i e being under the influence of alcohol) as opposed to having tested positive for alcohol (as dealt with in article 1/2024)?

To what extent is there currently a similar jurisdiction so applicable to answering the above question in respect of the symptoms of cannabis and its effects?

_____________________________________

  • The LAC, in Tanker Services (Pty) Limited v Magudulela [1997] 12 BLLR 1552 (LAC), stated that:
    •  ‘The difficulty with proving the charge brought against the respondent is that intoxication is a matter of degree. The respondent would only be “under the influence of alcohol” if he was no longer able to perform the tasks entrusted to him, and particularly the driving of a heavy vehicle, with the skill expected of a sober person.Whether an employee is, by reason of the consumption of intoxicating liquor, unable to perform a task entrusted to him by an employer must depend on the nature of the task.’
  • In cases where alcohol intoxication has been suspected, a breathalyser is not always conclusive on its own to justify dismissal (Palaborwa Mining Company Ltd v Cheetham and Others [2007] ZALAC 11; (2008) 29 ILJ 306 (LAC); [2008] 6 BLLR 553 (LAC); Mondi Paper Co v Dlamini [1996] 9 BLLR 1109 (LAC)).
  • Instead, it could be coupled with other evidence, such as the employee having slurred speech, impaired coordination, loudness and all the other known symptoms of alcohol intoxication (National Union of Metal Workers of South Africa obo Cloete v Trentyre (Pty) Ltd and Others [2008] ZALAC 18; [2016] JOL 35706 (LAC) (Trentyre); XStrata Coal South Africa v Commission for Conciliation Mediation And Arbitration and Others [2014] ZALCJHB 14).
  • A similar jurisprudence on the known symptoms of cannabis and its effects, compared to the duties associated with the nature of the job, should be allowed to develop. All this would depend – in addition to the test results (where available) – on the facts of each case and eyewitness accounts. This was not to say that test results, on their own, are always insufficient, but that the nature of the job determined the amount of evidence required to justify dismissal (Jet Demolition (Pty) Ltd v AMCU obo Sehoshe and Others [2022] ZALCJHB 55, at paragraph [52]).
September 2, 2025

What alternative claim(s) exist in delict to a statutory automatically unfair dismissal, a statutory constructive dismissal and a statutory unfair discrimination claim?

September 2, 2025

The scenario is as follows: in terms of a collective agreement between an employers’ organisation and various trade unions, provision is made for the accreditation of medical schemes by the relevant bargaining council, so that employees may enjoy the benefits of selecting and joining a scheme to which their employers contribute.

August 26, 2025

The labour court is afforded jurisdiction ito s77(1), read with ss77(3), of the BCEA to hear and determine any matter concerning a contract of employment, irrespective of whether a basic condition of employment constitutes a term of contract.